On 13 August 2021, the French Constitutional Council will give its opinion regarding the “Law to strengthen republican principles” which was adopted on 23 July 2021. This ruling may have far reaching consequences.
Whilst the main purpose of the law was to address the possible application of Sharia’a law within France, article 13 will affect clients who wish to elect for English law to apply to their estate under the EU Succession Regulation.
Chapter III – provisions in respect of the rights of persons and gender equality
Article 13 is part of Chapter III of the law, entitled “provisions in respect of the rights of persons and equality between women and men”, and its purpose was theoretically to avoid discrimination against women based on the application of Sharia’a law principles.
However, the wording is very wide:
Where a deceased or at least one of his children, is, at the time of his death, a national of a country of the EU or habitually resides [in the EU], and when the foreign law applicable to the estate does not provide any reservation mechanism to protect children, each child, or their heirs or successors in title, can claim compensation on the assets in France at the date of death, such that they are provided with the reserved rights that French law would give them.
The article goes on to require a notaire to inform each heir who might be affected of their right to reduce any legacies which would infringe on their reserved rights.
If the Constitutional Council does not strike this provision out it will apply to estates where the deceased died three months after the law is published, it could apply before the end of 2021.
Issues with the provision
The provision is problematic on many levels.
First, although it is included in a chapter on equality between men and women, parity between male and female beneficiaries or heirs is not part of the provision. Even more bizarrely, if it was included to avoid gender discrimination under Sharia’a law, it is unclear as to whether or not it succeeds. Where Sharia’a law gives all children a reserved share (albeit the daughters receiving half that of sons), it is hard to argue that there is no “mechanism to protect children”, and therefore it is debatable if the article can be brought into play.
Secondly, it attempts to use domestic legislation to overturn an international agreement (the EU Succession Regulation), despite the fact that this is legally incorrect and unconstitutional.
Thirdly, in practical terms, people may be faced with an unexpected change to their testamentary freedom with very short notice and little publicity. Even if they are aware of the provision, they may not realise that it could apply to them. The scope of the provision is very wide, the deceased or any of their children need only hold the nationality or be a habitual resident of any EU State. More than ever, we need to know all the nationalities that our clients, and all their children, hold. We may have advised a client without realising that one of their children was an EU national, especially since the number of British citizens acquiring an EU nationality has increased significantly since the Brexit referendum.
Most advisers are hoping that the provision will be struck out by the Constitutional Council; we can only wait and see.
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